I'm sorry I did not explain all the facts:
The City Manager decides, each and every year, which roads to pave. In 2013 he decided NOT to pave my road. Now, I can initiate an Art. 78 proceeding within 4 months. I did not do that.
In 2014, he will probably decide NOT to pave my road again (he will claim again, that the road is private, but his reason is irrelevant). Since I did not initiate an Art 78 proceeding in 2013, the issue has never been decided. So, res judicata should not apply.
But even if I brought and lost an Art 78 action in 2013, 2014 is a different year. Although the road is the same, its condition is different. And, other criteria the City Mgr uses to decide whether to pave a particular road, are different (e.g. the condition of all other roads, whether the City has "extra" money in 2014). So, it's a different decision and again, res judicata should not apply.
True on both counts?
Great answer. One more follow-up question.
If no one has ever challenged (in court) the City Mgr's decision for any year, the issue has never been litigated by a party. Therefore, that party has NOT had a full opportunity to litigate this particular issue.
So, res judicata should not even be a "colorable" defense. Right?
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